THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

SWANN, Judge.

¶1 Defendant Steve Allan West appeals his conviction and sentence for child abuse. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal and found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona, but did not do so.

¶2 We have searched the record for fundamental error. We find no fundamental error with respect to Defendant's conviction. But we do find fundamental error with respect to the superior court's order placing Defendant on probation, because the probationary term exceeded the statutory maximum. We therefore affirm the conviction, vacate the probation order, and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

¶3 In May 2011, Defendant was indicted for intentional or knowing child abuse under circumstances not likely to cause death or serious physical injury, a class 4 felony under A.R.S. § 13-3623(B)(1). Defendant entered a not guilty plea, and after a hearing consistent with State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000), he rejected the plea agreement offered by the state. The matter proceeded to a jury trial.

¶4 At trial, the state presented evidence of the following facts. The last weekend of August 2010, J.F. left her three children, including four-year-old A.F., in the care of Defendant, her live-in boyfriend. Midday on Sunday, Defendant telephoned J.F. and told her that A.F. had marks on his face, which Defendant believed had been caused by contact with a bunk-bed ladder. When J.F. rejoined her children on Sunday afternoon, she questioned A.F. about how he got the marks and A.F. said that he did not know.

¶5 The next morning, while getting her children ready for daycare, J.F. noticed bruises on A.F.'s legs. A.F. told J.F. that he did not know how he got those bruises, but A.F.'s seven-year-old brother told her that they were the result of a spanking Defendant had dispensed. Later, at the daycare center, J.F. asked the center's director to try to find out what happened to A.F. When questioned by the director, A.F. stated that Defendant was responsible for the bruises on his face. After conferring with the director, J.F. called the police. The police responded and took photographs of bruising on A.F.'s face, legs and buttocks.

¶6 A few days later, A.F. and his brother participated in forensic interviews. In the interviews, recordings of which were played for the jury but not admitted into evidence, A.F. stated that Defendant had punished him by slapping him, choking him, spanking him on the bottom with a hand, and forcing him to do push-ups. A.F.'s brother similarly recounted that he saw Defendant spank A.F. with his hand, slap him, and force him to do push-ups; the brother added that he also saw Defendant spank A.F. with a belt and head-butt him.

¶7 Defendant admitted to police that he had spanked A.F. on the bottom, claiming that he had used his non-dominant hand to administer six or seven strikes as punishment for misbehavior. Defendant also admitted to making A.F. do push-ups as punishment for lying and to lightly touching A.F.'s bottom with a belt. Defendant denied ever slapping A.F. on the face, and claimed that the marks on A.F.'s face were likely caused by A.F. pushing his face against the ladder of his bunk bed as he slept. Defendant also stated that he checked A.F.'s body the day after the spanking and saw only slight bruising.

¶8 At the conclusion of the state's case-in-chief, Defendant moved for a judgment of acquittal pursuant to Ariz. R. Crim. P. 20. The motion was denied.

¶9 For his defense, Defendant testified in a manner consistent with his statements to the police. Defendant also suggested that J.F. caused A.F.'s injuries after she came home on Sunday afternoon, and denied that J.F. ever clearly prohibited him from spanking her children.

¶10 The jury returned an "unable to agree" verdict on the charged offense of intentional or knowing child abuse, but found Defendant guilty of the lesser-included offense of reckless child abuse. But when the jury was polled, one juror stated that this was not his verdict. Accordingly, the court voided the verdict, ordered the jurors to resume deliberations, and gave them a new verdict form. Shortly thereafter, the jurors returned with an identical verdict on the new form, and confirmed their unanimity through a new poll.

¶11 Defendant waived his right to an aggravation hearing and admitted that the offense caused physical, emotional, or financial harm to the victim and was a domestic violence offense committed in the presence of a child. The court entered judgment on the jury's verdict, suspended the imposition of sentence, and placed Defendant on supervised probation for five years.

¶12 Defendant timely appeals. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶13 Defendant received a fair trial. He was present and represented by counsel at all critical proceedings. The state's opening, closing, and rebuttal arguments were proper. The jury was properly instructed on the charged offense and its lesser-included offenses, without objection by Defendant.

¶14 The record reveals sufficient evidence to support Defendant's conviction for the lesser-included offense of reckless child abuse. A person commits reckless child abuse under A.R.S. § 13-3623(B)(2) if, "under circumstances other than those likely to produce death or serious physical injury to a child . . ., [he] causes a child . . . to suffer physical injury or abuse" and the offense is "done recklessly." In their forensic interviews,1 A.F. and his brother described how Defendant punished A.F. by hitting him, and Defendant later admitted to some of the corporal punishment. Photographs taken soon after the punishment showed extensive bruising on A.F.'s face, legs and buttocks.

¶15 But though there was sufficient evidence to support Defendant's conviction, the superior court committed fundamental error at the sentencing hearing. The superior court lacks authority to impose probation terms other than those authorized by statute. Jackson v. Schneider, 207 Ariz. 325, 327, ¶ 10, 86 P.3d 381, 383 (App. 2004). Imposition of a probation term that exceeds the maximum duration authorized by statute is fundamental error. Id. at 328, ¶ 10, 86 P.3d at 384. Reckless child abuse under A.R.S. § 13-3623(B)(2) is a class 5 felony, for which the maximum probationary term is three years. A.R.S. § 13-902(A)(4). The superior court's imposition of a five-year probation term for that offense was fundamental error. We therefore vacate the probation order and remand for resentencing.

CONCLUSION

¶16 For the reasons set forth above, we affirm Defendant's conviction, vacate the order imposing probation, and remand for resentencing.

PATRICIA A. OROZCO, Presiding Judge, LAWRENCE F. WINTHROP, Chief Judge, concurring.